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Makaili v Crown [2009] TVHC 6; Family Case 02 of 2009 (26 October 2009)

Case no. 2/09

IN THE HIGH COURT OF TUVALU
AT FUNAFUTI

Family Appellate Jurisdiction

Between:

APETE MAKAILI
Appellant

V

And:

THE CROWN
Respondent

BEFORE THE CHIEF JUSTICE

I Isala for appellant
No appearance for respondent

Hearing: 21 October 2006
Judgment: 26 October 2006

JUDGMENT

1. This is an appeal from a decision of the learned Senior Magistrate refusing to make an adoption order under the Adoption of Children Act 1985. The Act makes no specific provision for appeal. However, it gives exclusive jurisdiction in all proceedings under the Act to the Senior Magistrate’s Court and, by section 39 of the Magistrates Courts Act, an appeal from the Senior Magistrates Court will lie to the High Court from all final judgments and decisions in any suit or matter before it and from all interlocutory orders and decisions made in the course of any suit or matter before it.

2. The applicant is a single man and he is seeking to adopt a nine year old son of his niece. All the required documents are in order and he states in his affidavit that the boy has been in his sole care and custody since he was five days old. He states that he wishes to live in New Zealand and needs the adoption order to be able to take the boy with him. The applicant is a seafarer and states that, when he is away, his mother has looked after the boy but he has known no other father or parent.

3. The application was considered by the Senior Magistrate in chambers. No lawyer or party was present. His minute shows that all documents were in order. The boy’s natural mother had consented and explained that her husband, the boy’s natural father, died when the boy was four years old. The Senior Magistrate’s minute states:

"1. The Court decides this application under section 4(1) and (3) of Children’s (sic) Act 1985, Cap 20A.

2. The applicant is resident in Funafuti, Tuvalu

3. The natural parents (sic) consented to the adoption as required under section 14(2)(a) of the Act

4. The adopting applicant is single which is contrary to the requirement of section 9(1) of the Act

5. The adopting applicant is a seaman by profession.

6. Therefore, the adopting applicant is considered not good repute, fit and proper person to fulfil the responsibilities of parents of the adopted child. The welfare and interest of the child is the paramount consideration in this case.

Therefore the court decides not to grant the motion."

4. The appeal is on the grounds:

1 That the learned Senior Magistrate erred in law and in fact in failing to consider the applicant’s circumstances

2. That the Senior Magistrate erred in law and or fact in finding the applicant is disqualified under section 9(1) to adopt the child.

3. The decision of the magistrate is not in the best interests of the child.

5. Section 9 (1) provides;

"(1) an adoption order shall be made only in favour of a husband and wife jointly unless the court is satisfied that exceptional circumstances make it desirable to make the order in favour of one person."

6. Clearly that section allows an order to be made in favour of a single person if the court considers there are exceptional circumstances which make it desirable. The Senior Magistrate was wrong to interpret that as meaning that a single person was prevented from receiving an adoption order.

7. That was the sole ground for refusing the application. Although he goes on to state that the applicant is not of good repute or a fit and proper person to fulfil the responsibilities of a parent, no reasons are given and the document before him gives no grounds for such a decision. The letter to the applicant’s lawyer advising him the application had been unsuccessful states that the decision is based on the Senior Magistrate’s interpretation of section 9(1) and adds, "Even the circumstances of the applicant provided under an affidavit doesn’t convince the Senior Magistrate to put under exceptional circumstances as required."

8. I do not find the meaning of that sentence easy to understand but, if it is suggesting that it is only the personal circumstances of the applicant which are relevant to the determination of whether or not there are exceptional circumstances, it is incorrect. The assessment of exceptional circumstances must be based on the whole of the facts of the case.

9. The affidavit states that the child has been brought by the applicant effectively all his life. During that time the applicant has provided and cared for him. If that were an incorrect statement it is unlikely the natural mother would have allowed the adoption application to be made. The correct statement that the child’s welfare and interest is the paramount consideration is hard to understand without any reasons. On the contrary, I find it hard to believe that it can be in the interest of the child to be taken from effectively the only parent has known for nearly ten years

10. I am satisfied that the Senior Magistrate did not consider the circumstances in respect of the possibility of exceptional circumstances. In fact the evidence as a whole is stoutly in the applicant’s favour. I am satisfied that the Magistrate based his whole decision on a misinterpretation of section 9(1) and his decision must be set aside.

11. As I have stated, the Act gives sole power to make adoption orders under the Act to the Senior Magistrate. I therefore remit the case to the Senior Magistrate with a direction to approve the application and to grant the order sought.

Dated 26th day of October 2009

Hon. Gordon Ward
CHIEF JUSTICE